A special education legal resource discussing case law, news, practical advocacy advice, and developments in state and federal laws, statutes and regulations. Postings include insight and sometimes humor from Charles P. Fox, a Chicago, Illinois attorney who is also a parent of child with special needs, and other guest authors. Email: [email protected]

November 08, 2017

Special education advocates were excited with last March’s Supreme Court ruling on Endrew F. v. Douglas County School District and its determination that students must make “appropriately ambitious” progress in their special education programs under the Individuals with Disabilities Education Act (IDEA). Cases are now coming up that will hopefully begin to flesh out the pararmeters of Endrew F and give more defintion to the term "meaningful progress". The Rowley case, which was decided in 1982, provided some guidance on what constitutes progress, but Endrew further refines it and raises the standards of special education for students. This past October, referencing the Endrew case, the Supreme Court remanded a special education case (E.F. v. Newport Mesa Unified School District) back to the lower court not because of the arguments in the case put forth by the parents, but because the Supreme Court wanted the district court to reconsider the case using the new Endrew standard.

February 14, 2017

Judge Gorsuch has served for the last 10 years on the United States Court of Appeals for the 10th Circuit. In this capacity, Judge Gorsuch has heard several cases related to special education and disability, which has enabled those who have analyzed both his concurring and issued opinions to determine how he might rule on such cases should he serve on the Supreme Court. A review of his decisions over this decade-long period shows that Judge Gorsuch overwhelmingly tends to uphold administrative rulings favoring school districts. As pointed out by Pete Wright, however, in some instances Judge Gorsuch has ruled in favor of students. Overall he is no friend to students with special needs.

How Judge Gorsuch has ruled on previous disability and special education cases is of critical importance. Fortunately, it is not likely he will be able to participate in the 2 pending cases before the Court. The first case currently pending is Fryv Napoleon, which asks if the exhaustion element applies to a 504 claim regarding the use of service animals. The other case, which is even more seminal, is Endrew F. v. Douglas County School District that is likely to result in clarification and possibly raising the Rowley standard and defining more clearly “meaningful” vs “some benefit.” Arguably, Endrew F. is the most consequential IDEA case to be heard before the Supreme Court since Rowley v. Hendrick Hudson School District. It is unlikely that even if Judge Gorsuch is confirmed that he will rule on these cases given oral arguments have already been made before the Court. Nevertheless, there are at least two more disability related cases, including an Obama-era case regarding use of restrooms by transgendered persons, that are making their way through the judicial pipeline and possibly to the Supreme Court.

What constitutes the Rowley standard of “some educational benefit” is frequently the basis of due process actions by families against school districts. The courts have debated “just above trivial” educational benefit versus “meaningful benefit.” In a Rowley-type case, Thompson R2-J Sch Dist. V. Luke P., Judge Gorsuch stated that since a student with autism with severe behavioral issues was making “some progress,” the school was not obligated to provide a residential placement, even though the child was unable to generalize skills and was making no progress outside the school environment. This decision reversed the ruling of an administrative hearing officer, a review officer, and a District Court. This narrow view of what schools can be expected to deliver for students with special needs is very disturbing. Moreover, his willingness to overrule the lower adjudicatory bodies shows a willingness to be a judicial activist to serve a conservative agenda in favor of a school's authority.

In most jurisdictions, IDEA requires that parents must exhaust all administrative efforts before taking a complaint to a district court. In A.F.v. Espanola Pub. Schs, Judge Gorsuch ruled that a district court's dismissal of a lawsuit was justified because a successful mediation on the part of the parents did not constitute exhaustion of administrative remedies and parents could not make subsequent claims under Section 504. This instance shows a willingness to raise the litigation burdens/cost and increase the time needed to have a student's claims adjudicated.

Another particularly disturbing case to me, given that I have represented a number of non-attending students who are frequently unable to attend school in large part because of the utter failure of their district to meet their needs, is Garcia v. Board of Educ. Of Albuqueque Pub. Schs. Judge Gorsuch ruled that even though the district had failed to provide FAPE by reviewing the student’s IEP, the District Court was correct in denying the student’s compensatory educational claims because of truancy. This moralistic stance fits neatly with the narrative that schools use as a justification to not serve students with significant needs who have been unable to attend school.

As pointed out by Pete Wright, Judge Gorsuch has been part of the panel that has also on occasion made very pro-child decisions, including a decision where the District Court wasn’t allowed to delegate its remedial authority to IEP teams (M.S. v. Utah Schs. For the Deaf and Blind) and a decision stating that it was unnecessary for courts to sort through conflicting opinions from different appellate courts to determine what constitutes a need for residential placement in the case of a student who, according to the judges, required a residential placement “under any standard.” (Jefferson County Sch. Dist. R-1 v. Elizabeth E.) In A.M. v. Holmes, Judge Gorsuch came down hard on a school district that arrested a 7th grade student who was fake burping in gym class and suggested that ordering the student to run extra laps or go to the principal’s office might have been more appropriate punishments than having the local police department handcuff the student and take him to jail.

Because we are living in “interesting times,” it is likely that Judge Gorsuch, or a jurist similar to him, will be appointed to the Supreme Court. However, given his clear track record that is not favorable to special education students, Judge Gorsuch is not an acceptable candidate, and we should advocate that our respective Senators reject his confirmation, and if need be filibuster the nomination. The courts are our bulwark against erosion of the rights of students with special needs, and Judge Gorsuch will not be a champion of those rights.

January 18, 2017

It is difficult enough for young children to be faced with a significant speech impairment like stuttering. As discussed in this blog, the effects of stuttering are often co-morbid with other learning issues. Most children who develop a stutter in their pre-school years fortunately outgrow it. The National Institute on Deafness and Other Communication Disorders states that some 3 million Americans stutter. Stuttering usually develops between the ages of 2 and 6 while language skills are rapidly developing and a child’s linguistic, motor, and emotional capacities are lagging (the so-called Demands and Capacity Model). As a result, approximately 5 to 10% of children will stutter at some point in their lives. The American Speech-Language-Hearing Association reports reports of remission rates vary from 6.3% all the way up to 80%. (The large disparity may reflect the manner in which data was collected.) Boys are affected 2 to 3 times as frequently as girls. Some data that suggest that African American children may stutter more frequently than whites. For those persons whose fluency does not resolve, stuttering can interfere with school, employment, and social milieus and lead to frustration, embarrassment, or anxiety. The worst cases can result in the creation of self-doubt and bullying. People who stutter know what they want to say. They simply can’t always get past the repetition of sounds or syllables or blocks associated with the disorder. Thus, diagnosis and treatment are imperative.

January 11, 2017

According to the September 2015 47th Annual PDK/Gallup Poll of the Public’s Attitudes toward the Public Schools, only 31% of Americans favor allowing vouchers to be used to pay for private and religious schools. Numerous other polls show higher ratios supporting use of vouchers, particularly for low-income students in failing schools, for whom many existing voucher programs were initially designed. Currently, 14 states have voucher programs, all of which are funded by the states. Only schools in the District of Columbia use federal funds for voucher programs. Regardless of whether you support or oppose the use of vouchers, with the advent of the educational policies of Betsy DeVos and a Trump administration, we are rapidly and inexorably slouching toward the use of public funds to pay for private and religious schools through the use of vouchers.

August 03, 2016

Parents frequently tell me that their school districts refuse to recognize their child’s diagnosis of dyslexia. One school psychologist defines dyslexia as “simply a fancy word for a disorder that involves reading.” Other parents are told by their districts that dyslexia is merely an umbrella term for a reading difficulty or a medical diagnosis that is not relevant to specific planning for the child in his or her IEP. These parents are often frustrated and confused when schools won’t even insert the term “dyslexia” anywhere within the IEP. But guidance from the Department of Education makes it explicitly clear that dyslexia is recognized by the IDEA. An October 2015 “Dear Colleague” letter from the Department of Education states: “there is nothing in the IDEA that would prohibit the use of the terms dyslexia, dyscalculia, and dysgraphia in IDEA evaluation, eligibility determinations, or IEP documents.” Why is this letter so important for students with dyslexia, dyscalculia, or dysgraphia? Because calling a duck a duck may be needed not only to ensure that students with dyslexia are deemed eligible for special education services but also that they receive appropriate remediation for their dyslexia.

November 20, 2015

The Behavioral Analysis Program in the FBI’s Counterintelligence Division is responsible for the “thoughtful process of creating a positive interaction and possible relationship between two individuals, whether the goal is an interview, confession, or development of a confidential source.” You may be asking, “Why am I reading about this in a special education blog?” Because Robin Dreeke, who managed the FBI program for more than 25 years, has published a book entitled, “It’s Not All About ‘Me’: The Top Ten Techniques for Building Quick Rapport with Anyone.” In a nutshell, Mr. Dreeke is talking about the development of social skills, which is a critical piece of the special education puzzle for many of our students. As we have discussed in previous blogs, social skills, or the lack thereof, is what trips up many of our students/children as they enter young adulthood. Rick Lavoie, a social skills training expert, stated: “Social skills deficits are the ultimate determining factor in the child’s future success, happiness, and acceptance.” It’s not enough to be book smart in this world; you also need to have emotional intelligence and people savvy.

Most of Mr. Dreeke’s suggestions, which are crystallized in a Time magazine article, may seem obvious to most of us. Yet, they may not be to our loved ones with disabilities. Admittedly, most of Mr. Dreeke’s strategies are well beyond the scope of most of the client’s in my practice who are still dealing with communication basics: vocal intonation, making eye contact, respecting personal space, etc. But for students who are much higher functioning and capable of abstract thought and introspection, Mr. Dreeke is providing a blue print a la Dale Carnegie on how to make friends and generally succeed in life. To quote the list provided by Time, Mr. Dreeke recommends:

The single most important thing is non-judgmental validation. Seek someone else's thoughts and opinions without judging them.

Suspend your ego. Focus on them.

Really listen, don’t just wait to talk. Ask them questions; don’t try to come up with stories to impress.

Ask people about what’s been challenging them.

Establishing a time constraint early in the conversation can put strangers at ease.

If you think someone is trying to manipulate you, clarify goals. Don’t be hostile or aggressive, but ask them to be straight about what they want.

These strategies are reminders of what many of our kids may need. For some students, particularly those with autism spectrum disorders, the lack of social skills (as well as other functional living skills) can be deal breakers for them as they move into young adulthood. As we have discussed elsewhere, many of these bright, young adults matriculate at colleges or in jobs and yet fail. They simply don’t have complete skill sets to navigate independent living or post-secondary education. These points could be useful in thinking about and developing goals both in high school and in transition programming.

Emily Iland, an advocate and leader in the autism community, recommends going back to the transition plan for these higher functioning students. Because they have been navigating high school on a college prep academic track, these students haven’t had room to address many of these communication and independent living skills and school districts may not even recognize that they are lacking. Ms. Iland reminds us that these students don’t have to be handed their diplomas at 18; they can continue receiving services until they turn 21.

It is during this transition period that perhaps many of Mr. Dreeke’s recommendations can be integrated into solid transition goals that address pragmatic language deficits, including nonverbal body language, reciprocal speech, and initiating conversations as well as other functional and adaptive skills. Keeping higher functioning 18-year-olds in high school may be a challenge—school districts are not used to not graduating 18-year-olds who have the requisite academic skills—and these higher functioning 18-year-olds, who legally are their own educational decision makers, may utterly balk at not graduating with their peers. However, graduating from high school is a change in placement, and if appropriate can be challenged through due process and the accompanying stay put regulations. It is possible that the student/family can demonstrate that the young adult is not ready for young adult life and needs additional transition services.

I’m not necessarily recommending that every 18 year old with an ASD should continue into a transition program, but I am suggesting that families and school districts consider the student’s needs outside the academic curriculum. The basis for this is of course, a strong and solid transition plan, which unfortunately receives very short shrift for the highest functioning special education students. Mr. Dreeke’s recommendations for “How to Get People to Like You” simply reminds us of some of the skills our students will need as they transition into adulthood.

August 21, 2015

I am publishing a series of blogs on employment related to people with disabilities. This is the first of 4 posts. The Code of Federal Regulations states that the purpose of the Individuals with Disabilities Education Act of 2004 is to prepare students with disabilities for further education, employment, and independent living (CFR 300.1[a]). So what happens for students with disabilities once they either receive high school diplomas or complete their transition programs? Are they employed? Are they under-employed? What kind of incomes are they earning? We, and our children with disabilities or those students for whom we have advocated, have all worked too hard, exerted too much energy, and shed too many tears to have everything we’ve struggled for end when the school bus no longer picks up our children. We need to look at what we are preparing our loved ones for once they no longer receive special education services. With these thoughts in mind, we are exploring in different blogs what the employment outcomes are for persons with disabilities. Although some of the data is extremely discouraging, there are bright spots that we can all hope will translate to rewarding careers/work lives for our loved ones with special needs.

November 15, 2014

The issue of accessibility of web-based content is fairly new, given that the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973 pre-date the internet boom and the growth of innumerable emerging technologies that school districts are rapidly incorporating into their educational programs today. But as more and more schools adopt online learning, as enrollment in virtual schools increases, and as complaints from students with disabilities escalate, it is becomingly increasingly clear that schools need to determine the accessibility of new technologies before their adoption. Accessibility should not be an afterthought.

October 17, 2014

In an editorial that appeared in TheWall Street Journal a year ago, school district attorney Miriam Kurtzig Freedman challenged the practice of inclusion of special needs students in regular education classrooms because of her belief that the presence of some of these students is compromising the education of their non-disabled peers. More specifically, Ms. Freedman urges parents of children without disabilities to speak out about how children with special needs are “short changing” the education of their children. The reasons for inclusion, according to Ms. Freedman are based more on “civil rights and social justice” and not on “best education practices.” The practice of inclusion is “entrenched” and “politically correct.” Ms. Freedman’s argument, if heeded, would set back the right of disabled children to a free appropriate public education by more than 30 years.

February 23, 2011

Congressman Gregg Harper is the only member of Congress with a child with Fragile X. He is putting his life experience to good use in his proposed amendment to the transition provisions of IDEIA. He has proposed a bill that contains a significant set of amendments to the transition sections of IDEIA, which would greatly bolster the rights of students to have more robust transition planning. (see copy of the bill by clicking on the pdf Download 4926_0001). This bill proposes to reduce the age that transition planning begins to 14 from the federal level of 16 in the current IDEIA (in Illinois it is 14.5 years of age). It calls for the development of objectives as part of the transition plan and that the IEP should contain:

"a strategy to address the needs of the child related to academic and school-based prepatory experiences, work and career readiness, youth development and leadership..."

Sounds very good to me expecially compared to the often non-plans that I see every day in my office that are generic and missing in any real specifics. We need strategies and we need enhanced definitions and delineation of transition needs that this bill provides. I hope Rep. Harper will be able to shepard this bill through as things heat up in the reauthorization processs.